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HQ 088594


October 3, 1991

CLA-2 CO:R:C:G 088594 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 6403.99.60; 6403.99.90

District Director
U.S. Customs Service
555 Battery Street
P.O. Box 2450
San Francisco, CA 94126

RE: Protest No. 2809-90-101810, dated September 27, 1990; Turned Footwear; subheading 6403.99.60; subheading 6403.99.90; subheading 6403.59.15; item 700.20, TSUS

Dear District Director:

The following is our response to the Protest and Request for Further Review No. 2809-90-101810, dated September 27, 1990, concerning the tariff classification of turned footwear.

FACTS:

The footwear at issue is men's and women's casual shoes with leather uppers and rubber/plastic soles of turned construction.

Upon importation the men's shoes were classified in subheading 6403.99.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for footwear with uppers of leather and outer soles of material other than leather, other footwear, other, other, for men. The rate of duty is 8.5 percent ad valorem. The women's shoes were classified in subheading 6403.99.90, HTSUSA, which provides for footwear with uppers of leather and outer soles of material other than leather, other footwear, other, for other persons, valued over $2.50 per pair. The rate of duty is 10 percent ad valorem.

The protestant argues that the correct classification for the instant footwear is in subheading 6403.59.15, HTSUSA, which provides for other footwear with outer soles of leather, other, turn or turned footwear. The rate of duty is 2.5 percent ad valorem. It is the protestant's contention that there was a uniform and established practice to classify all turned leather footwear at a 2.5 percent duty rate under item 700.2020, Tariff Schedules of the United States (TSUS), which provided for footwear, of leather, turn or turned footwear. In addition, the protestant states that the HTSUSA, which was meant to be revenue neutral, inadvertently failed to include a special provision for turned footwear with rubber/plastic soles in subheading 6403.99, HTSUSA, but did provide a 2.5 percent rate for turned footwear with leather soles under subheading 6403.59.15, HTSUSA. Finally, protestant argues that because there is a change in a uniform and established practice, which results in a higher duty rate, they must first be notified of this change by publication in the Federal Register.

ISSUE:

What is the HTSUSA classification of turned footwear with a leather upper and a rubber/plastic sole.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA, which became effective as the tariff law of the United States on January 1, 1989, is governed by the General Rules of Interpretation (GRI). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided such headings or notes do not otherwise require, according to the remaining GRI's taken in order." Subheading 6403.59.15, HTSUSA, provides for the following: footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather, other footwear with outer soles of leather, other, turn or turned footwear.(Emphasis added) Though the subject footwear has uppers of leather and is of turned construction, it is excluded from classification in subheading 6403.59.15, HTSUSA, since its outer soles are not made of leather. Because the subject men's and women's shoes have uppers of leather and outer soles of rubber/plastic, they are more properly described in subheadings 6403.99.60, HTSUSA, and 6403.99.90, HTSUSA, respectively.

The fact that the instant footwear is subject to a higher duty rate results from a change made by Congress in enacting a new tariff schedule, the HTSUSA. It does not reflect a change in a uniform and established practice by Customs and publication of notice in the Federal Register is, therefore, not necessary. However, it is noted that by a document published as T.D. 89-1 in the Federal Register on December 21, 1988 (53 FR 51244), the Customs Service advised the public that effective January 1, 1989, the U. S. intended to replace the TSUS by acceding to the International Convention on the Harmonized Commodity Description and Coding System (HS). The notice set forth the background of the HS, the HTSUS and interim amendments to the Customs Regulations necessitated by the adoption of a new U.S tariff. The public was invited to comment on the changes.

Moreover, the language in the two pertinent provisions has changed. Under the TSUS, leather footwear of turn or turned construction was classifiable in item 700.20, regardless of the composition of the soles. Under the HTSUSA, leather footwear of turn or turned construction is classifiable in subheading 6403.59.15, HTSUSA, only if the outer soles are made of leather. Turned footwear with uppers of leather and soles made of material other than leather are classifiable in different subheadings in the HTSUSA.

HOLDING:

Footwear with leather uppers and soles of rubber/plastic of turned construction for men and women are classifiable in subheading 6403.99.60, HTSUSA, and in subheading 6403.99.90, HTSUSA, respectively.

The protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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